Donaldson Estate v. Waters Edge Care Community, 2016 HRTO 944

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Estate of Eileen Donaldson

Applicant

-and-

Waters Edge Care Community

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: July 19, 2016

Citation: 2016 HRTO 944

Indexed as: Donaldson Estate v. Waters Edge Care Community

WRITTEN SUBMISSIONS

The Estate of Eileen Donaldson, Applicant

Jason Maclennan, Representative

Waters Edge Care Community, Respondent

Hendrik Nieuwland, Counsel

[1] This Application was filed on February 22, 2016 by Lynne Newman (the applicant) on behalf of Eileen Donaldson (the claimant). Subsequent to the Application being filed, the claimant passed away.

[2] On March 11, 2016, the Tribunal wrote to the applicant. The material text of the letter is set out below:

The Human Rights Tribunal of Ontario (HRTO) has received an Application from Eileen Donaldson. The HRTO understands that the applicant is deceased.

In these circumstances, the HRTO requires confirmation of who is authorized to act on behalf of the estate. The HRTO has found that it does not have authority to proceed with an Application without the appointment of an estate trustee (see Denham v. Hamilton Health Sciences Volunteer Association, 2012 HRTO 858).

The estate should provide a copy of the certificate of appointment of estate trustee with or without a will that authorizes the trustee to act on behalf of the estate. This must be filed with the Registrar no later than April 4, 2016.

If no estate trustee has yet been appointed you may request that the HRTO hold the Application in abeyance pending appointment of the trustee.

If you are seeking to continue this Application in the absence of a certificate confirming the appointment of an estate trustee, please provide submissions by April 4, 2016 as to why the Application should proceed in the absence of such an appointment.

[3] The applicant did not respond to the Tribunal’s direction and the Application was dismissed in Decision 2016 HRTO 621, issued on May 9, 2016.

[4] The applicant filed a Request for Reconsideration. The respondent has responded to the Request and opposes it.

[5] For the reasons that follow the Request is granted.

6Under section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

7The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, last amended April 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

8The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

9As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

10The applicant relies on Rule 26.5(b) and asserts that she did not receive the Tribunal’s March 11, 2016 correspondence and relies on the decision of the Divisional Court in Harvey v. Evan’s Bus Lines, (Div. Ct. DV-14-2080), issued on June 9, 2015.

11As indicated the respondent opposes the Request. The respondent expresses skepticism with the applicant’s assertion that she did not receive the March 11, 2016 correspondence.

12The respondent raises a number of other issues related to the applicant’s status to proceed with this Application and whether or not it should be dismissed because it has no reasonable prospect of success. These are significant issues but their resolution logically requires that the Request for Reconsideration be dealt with before they can be addressed.

13In my view the applicant has correctly identified the principle to be drawn from the Harvey Decision above – unless there is a reason to question an assertion that a piece of correspondence was not received, the applicant should be given the benefit of the doubt. In all of the circumstances it appears that that the applicant did not receive the March 11, 2016 correspondence and as such there is no basis to conclude that she had abandoned this Application. Accordingly, the Decision cannot stand and it is set aside.

Next Steps

14As indicated above the claimant is now deceased. The applicant is the deceased’s daughter and claims to have authority in this case pursuant to a Last Will and Testament of the deceased (the “Will”). The applicant also relies on a power of attorney over the deceased’s affairs. The applicant has appointed a representative, her son, to act on her behalf.

15All of this might be appropriate if the claimant remained alive. However, at this stage the claimant is deceased and if this Application is to continue, the Tribunal must be satisfied that there is person authorized to take actions with respect to the Estate of the deceased. As I understand the law, a power of attorney over the affairs of a person has no effect after their death. What is required is a certificate of appointment of estate trustee with or without a will. As previously indicated to the parties, the Tribunal’s Decision in Denham v. Hamilton Health Sciences Centre, 2012 HRTO 858, outlines the Tribunal’s approach in these circumstances.

16In my view it is appropriate to afford the applicant a further period of time to determine whether she wishes to take the steps necessary to have an estate trustee appointed. This is the next logical step before the other issues raised by the respondent can be address. In the circumstances, this Application will be deferred for a period of four months, at which time the applicant must advise that steps have been taken to appoint an estate trustee. failing which the Application may be dismissed as abandoned.

17I am not seized of this case.